Bundy mistrial highlights federal failures to bring criminals to justice

The mistrial declared this week in the Nevada case of Cliven Bundy is an outrage. Bundy is the nation’s most notorious scofflaw, organizing armed uprisings in which militants point assault rifles at law enforcement officers. Yet federal agencies have taken a kid-gloves approach to calling to account the Bundys’ armed insurgencies in Oregon and Nevada, playing games with the charges and apparently bungling the prosecution.

News photos in the wake of the mistrial show the Bundys celebrating as if the courts had found them innocent of the crimes that sent a few of their followers to prison for as many as 68 years. Meanwhile, the ringleaders walk free.

{mosads}Livestock grazing is the most widespread environmental problem in the American West, and the Bundys are a special case. The Nevada public lands where today the Bundy cattle roam were closed to livestock in 1992 to protect endangered desert tortoise habitat. The Bundys have been grazing their livestock illegally on these public lands ever since. To add insult to injury, the Bundys refused to pay rent for their trespassing cattle all these years, racking up more than $1 million in unpaid grazing fees owed to the property owners, the American taxpayers.

After the Bundys staged an armed standoff in Bunkerville, Nevada, to interfere with a roundup of the trespassing livestock in 2014, the Bureau of Land Management caved in and released the illegal cattle back onto federal lands. They’re still out there, starving on the open range and continuing to impact the fragile desert landscape, in spite of a 2013 court order commanding Bundy to remove them.

According to the old legal saw, justice delayed is justice denied.

In 2016, the Bundy sons, Ammon and Ryan, led a heavily-armed standoff with state and federal law enforcement at Malheur National Wildlife Refuge that lasted 41 days and caused millions of dollars in damage. At the time, many questioned why law enforcement allowed the illegal occupation to drag on so long, and whether law enforcement’s response would have been different — more prompt and decisive — had the armed militants been Muslim.

Ammon Bundy beat his conspiracy rap by denying under oath that there was any advance planning before the day of the Malheur armed occupation, and characterizing the Malheur incident as spontaneous. Ammon later contradicted himself by testifying during the trial of another Malheur defendant that he had starting planning the Malheur armed occupation with co-conspirators in December. Why isn’t he on trial for perjury?  

The embers of the Bundy land seizure movement have been fanned by Angus McIntosh, an agricultural economist with no legal qualifications. That hasn’t stopped him from barnstorming the West, dispensing advice that ranchers, not the American public, actually own the public lands and are free to ignore the federal land managers whose job it is to regulate commercial uses on federal public lands. The Bundy movement seems to have internalized this crackpot legal doctrine, and the Bundys in turn helped fuel the well-heeled corporate-led effort to privatize public lands.

In a case parallel to the Bundy livestock trespass issue, a federal judge in Nevada subsequently levied penalties and fees of $587,294 against Wayne N. Hage, son of the Godfather of the original Sagebrush Rebellion, and ordered him to remove his livestock from public lands. Hage failed to convince the court that by establishing a water right for livestock on his federal grazing lease, he had established a property right to graze his cattle on public lands without government authorization.

In her ruling, the judge schooled Hage on federal property rights: “No individuals have a right to graze livestock on the federal land at issue without authorization from the United States. … Any and all rights on federal property must be expressly granted by Congress, and the law of the United States exclusively governs the disposition of federal property, and interests therein, under the United States Constitution, Article IV.”

Ignorance of the law is no defense. Common criminals who wave around a pocket Constitution are still common criminals. And our legal system should hold them accountable.

The Bundys are like the tenants who trash the apartment and then blame the landlord for evicting them. In this case, federal agencies charged with (and often failing to) responsibly manage western public lands are merely the property managers, working for the American public. These federal agencies have been patient and cautious to a fault in their prosecution of the Bundys and their accomplices. It’s long past time to stop playing games with the prosecution of federal crimes, and instead lay all the facts on the table and let the judicial system work.

If federal agencies broke the law in any way, they should be held accountable under the law. So should Cliven Bundy and his henchmen. Hopefully, prosecutorial missteps won’t get in the way of justice.

Erik Molvar is executive director of Western Watersheds Project, an environmental conservation organization working to protect and restore western watersheds and wildlife.